Link v. Hathway
| Decision Date | 04 April 1910 |
| Citation | 127 S.W. 913,143 Mo.App. 502 |
| Parties | LEWIS LINK, Appellant, v. W. W. HATHWAY, Respondent |
| Court | Missouri Court of Appeals |
Appeal from Greene Circuit Court.--Hon. James T. Neville, Judge.
AFFIRMED AS TO PLAINTIFF'S APPEAL.
REVERSED AND REMANDED (with directions) AS TO DEFENDANT'S APPEAL.
AFFIRMED AS TO PLAINTIFF'S APPEAL. REVERSED AND REMANDED (with directions) AS TO DEFENDANT'S APPEAL.
W. P Campbell and O. L. Haydon for plaintiff.
(1) The agreement in the written contract of June 21, 1906, to "furnish repairs, ordinary wear and tear excepted," obligated the defendant to rebuild and repair, after a partial destruction by fire. Hoy v. Holt, 91 Penn 88, 36 Am. Rep. 659; Beach v. Crain, 2 N.Y. (2 Comst.) 86, 49 Am. Dec. 369; Polack v. Pioche, 35 Cal. 416, 95 Am. Dec. 115; Scott v. Scott, 18 Gratt (Va.) 166; Ross v. Overton, 3 Cal. 309, 2 Am Dec. 552; Gathwright v. Callaway Co., 10 Mo. 663. (2) Where a contract is not expressed in precise terms, the court will not hold it meaningless, but will look to the facts and circumstances surrounding the subject-matter it contains, and the acts of the parties, in aid of construction. Belch v. Miller, 32 Mo.App. 387; Gas Light Co. v. St. Louis, 46 Mo. 121; Goldman v. Wolf, 6 Mo.App. 490; Bishop on Cont., 412; Edwards v. Smith, 63 Mo. 119; Bruce v. Beak, 43 Mo. 266; Moss v. Green, 41 Mo. 390. (3) The court should have submitted the issues to the jury on the testimony in the record tending to show that defendant was at the time and before the issue of the attachment selling and offering to sell in a lump all his available assets and effects, and gave as a reason therefor that he was closing out his business in Missouri, with a view to establishing a lumber business in Alabama, as soon as he could close out his business in Missouri. Elliott v. Keith, 32 Mo. 579; Kurtz v. Troll, 86 Mo.App. 649; Bank v. Russey, 74 Mo.App. 651; Bank v. Lumber Co., 134 Mo. 433; Bank v. Lumber Co., 68 Mo.App. 81; Bank v. Lumber Co., 59 Mo.App. 317; Commission Co. v. Hunter, 91 Mo.App. 333; Powell v. Matthews, 10 Mo. 49; Waples on Attachment, sec. 71; Stewart v. Cabanne, 16 Mo.App. 517; Enders v. Richards, 33 Mo. 598; Noys v. Cunningham, 51 Mo.App. 194.
Lewis Luster for defendant.
(1) Appellant is in no position to have the trial court's order referring the case reviewed by this court on appeal, for the reason that appellant failed to save his exceptions to this order by a term bill of exceptions. Smith v. Baer, 166 Mo. 401; Tinsley v. Kimery, 170 Mo. 310. (2) This being a proper case for reference as to some of the counts, it was within the discretion of the court to refer the whole case, which discretion will not be reviewed unless it was clearly abused. Smith v. Baer, 166 Mo. 402; R. S. 1899, sec. 694. (3) Under the provision of the written contract to "furnish repairs," defendant was not bound as an insurer of the mill, and is not responsible in damages for its burning. Livingston County v. Graves, 32 Mo. 479; McEvers v. Steamboat Sangamon, 22 Mo. 187; Halbut v. Forest City, 34 Ark. 246; Pollard v. Schaffer, 1 Dall. 210; Maggort v. Hansbarger, 8 Leigh. 532; Miller v. Morris, 55 Tex. 412; Levey v. Dyess, 51 Miss. 569; Wattles v. Ice Co. (Neb.), 36 L.R.A. 424; Whitaker v. Hawley, 25 Kan. 692; Warner v. Hitchins, 5 Barb. 666; Wainscott v. Silvers, 13 Ind. 500; Warren v. Wagner, 75 Ala. 188; Howeth v. Anderson, 25 Tex. 557; Nave v. Berry, 22 Ala. 382; Van Wormer v. Crane, 51 Mich. 363; Wait v. O'Neil, 72 F. 348. (4) There was no evidence tending to substantiate any grounds for attachment alleged by plaintiff, and the action of the lower court in sustaining defendant's demurrer to plaintiff's evidence was justified and should be upheld by this court on appeal. Meyers v. Boyd, 37 Mo.App. 532; Distilling Co. v. Lock, 59 Mo.App. 640; Hardwick v. Cox, 50 Mo.App. 515; Rosenthal v. Widensholer, 115 Mo.App. 237; Milling Co. v. McWilliams, 121 Mo.App. 322; Adams v. Abernathy, 37 Mo. 198. (5) Under the laws of Missouri the question of what is a man's domicile has been settled, both by the statutes and decisions. R. S. 1899, sec. 4160; Mercantile Co. v. Burrell Sisters, 66 Mo.App. 123; Chariton Co. v. Moberly, 59 Mo. 238. (6) An unsettled account is not grounds for an attachment. Stead v. Mahon, 70 Mo.App. 400; Urner v. Prewett, 24 Mo.App. 539; Meyers v. Boyd, 37 Mo.App. 536. (7) There was testimony to sustain every issue of fact on which the referee's finding was against plaintiff. On issues of fact the referee's finding stands the same as the special verdict of a jury, and will not be disturbed by the appellate court where there is testimony to sustain it. Benevolent Ass'n v. Kribben, 47 Mo. 37; Franz v. Dietrick, 49 Mo. 95; Berthold v. O'Hara, 121 Mo. 97; Utley v. Hill, 155 Mo. 277; Smith v. Baer, 166 Mo. 406; Vogt v. Butler, 105 Mo. 485; Ferry Co. v. Railroad, 73 Mo. 419. (8) The court erred in taxing all the costs against defendant. R. S. 1899, secs. 694, 1547, 1560; Buckman v. Railroad, 98 S.W. 822; Schumacher v. Mehlberg, 96 Mo.App. 600; Needles v. Burk, 98 Mo. 477.
On November 7, 1906, the plaintiff commenced suit against the defendant in the circuit court of Howell county, by filing a petition containing nine counts. The answer of the defendant was a denial of the different counts in plaintiff's petition, and with five counterclaims set forth in his answer. When the suit was commenced, an attachment writ was sued out in aid thereof by the plaintiff, and certain property of the defendant seized. In due time the defendant filed his plea in abatement to the attachment and a trial was had on the issues thus made before a jury in the Howell County Circuit Court, March term, 1907, and at the conclusion of the plaintiff's evidence, the court instructed the jury to find the issues for defendant, and a verdict was rendered in accordance therewith. Motion for new trial was filed in statutory time and a hearing on the same was continued to the July term, 1907, when the motion was taken up and overruled. Whereupon, and on the same day the plaintiff filed his bill of exceptions and an affidavit for an appeal from the judgment of the court overruling his motion for new trial on the plea in abatement. Afterwards and on the same day the plaintiff applied for and obtained a change of venue on the merits of the cause to the Greene County Circuit Court.
On November 14, 1907, the circuit court of Greene county appointed Honorable George W. Goad, referee to hear and determine all the issues in the case. The referee heard the evidence and reported to the court. From the judgment as finally rendered on the referee's report, both parties appealed.
The respondent, Hathway, has filed in this court motions to dismiss the appeal on the attachment proceedings, as well as on the proceedings on the merits, and to those motions, the other party has replied and has filed supplemental abstracts. The appeals were taken originally to the St. Louis Court of Appeals, and after the cases were transferred here by an order of that court, the supplemental abstracts were filed, as required by the rules of this court, more than thirty days before the cause was set for trial in this court.
We have examined the abstracts and motions relating thereto, and have come to the conclusion that the motions at the time they were filed, were well taken, but since that time, and within the time allowed by the rules of this court, corrected and supplemental abstracts have been filed, and the motions, so far as they relate to insufficient abstracts, will be overruled.
The proceedings in the case, as shown by the record, are out of the ordinary. We have two complete abstracts and bills of exceptions. One abstract is on the attachment proceedings and comes from the Howell County Circuit Court, and the other shows the proceedings on the merits and comes from the Greene County Circuit Court.
When the circuit court of Howell county denied plaintiff a new trial on his plea in abatement, bill of exceptions was filed and an affidavit for an appeal to take effect when the cause had been tried on the merits. The statute governing attachment proceedings, permits of no appeal from a judgment of the court sustaining the plea in abatement. [Sec. 407, R. S. 1899; Harris v. Letner, 101 Mo.App. 689, 74 S.W. 1116.]
The proper practice is to prepare the bill of exceptions and have it approved by the judge of the court in which the abatement proceedings were had, and if a change of venue is taken on the merits, and the term bill of exceptions is filed before the change of venue, it should go with the transcript to the other court, and if filed after such transcript is forwarded, it must still be incorporated in the principal bill of exceptions by bringing it to the attention of the court settling the final bill. [Cantwell v. Lead Co., 199 Mo. l. c. 1, 97 S.W. 167.]
And when a litigant appeals from a whole case, he makes his bill of exceptions, which also includes his exceptions on a trial of the plea in abatement, and which makes one bill. The trial of the plea in abatement is but a preliminary step in the cause. [Bank v. Thornberry & Stone, 109 Mo.App. 639, 83 S.W. 771.]
In this case, however, we have examined the testimony taken on the plea in abatement, and we cannot say that the trial court committed error in sustaining the demurrer to the plaintiff's evidence. The court should take the case from the jury where, if it was submitted and the verdict rendered for plaintiff, such verdict could not stand. [Warner v The Railroad, 178 Mo. 125, 77 S.W. 67.] And when the court is asked to authorize the jury to find a fact from testimony so vague and uncertain that the inference to be drawn from it amounts to scarcely more than...
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